Software Patent of the Week: Patents In Outer Space!

Let’s say you’ve got a satellite with which you want to transmit video programming. And let’s say that, in addition to providing subscribers with live television programming, you want to provide your subscribers with relatively rapid access to a large library of pre-recorded video content. Your satellite doesn’t have enough bandwidth to stream each video to each customer in real time, so you’ve got to figure out a way to get the videos to as many customers as possible as quickly as possible. How would you do that?

Well, since we stipulated that you don’t have enough bandwidth to stream everyone’s videos to them in real time, the receiving devices will need some local storage so they can store the files until the user is ready to view them. You’ll want to transmit more popular items more frequently in order to minimize how long the user will have to wait until his desired program is transmitted. And you’ll want a mechanism for customers to communicate back to the satellite to request transmission of content that’s not on the regular rotation. Less-popular content can be beamed overnight, when the demand on the satellite is less.

And surprise, the preceding paragraph describes patent #5,404,505, which was granted to the Finisar Corporation back in 1995.

It seems to me that if you’ve got a satellite and you want to use it for “on demand” style programming, the elements of this patent are pretty obvious to people with no technical background whatsoever. Actually implementing such a system is, of course, difficult, but it’s not difficult to come up with the general strategy this patent describes.

Yet Finisar seems to believe that this patent entitles it, not just to a share of the revenue of satellite TV companies, but to decide who may use its “technology” at all.

What’s pernicious about patents like this is that precisely because they’re so obvious they tend to give companies control over not just a particular “invention,” but over entire industries. Finisar’s patent is so vague that any reasonable implementation of on-demand satellite video is likely to infringe it. By the same token, NTP’s “invention” of checking your email wirelessly effectively allows them to extort money from the entire wireless device market. If the obviousness standard were more strictly enforced, not only would fewer patents be granted, but the ones that did would be less likely to give companies arbitrary monopolies over large sectors of the economy.

Luckily, the judge injected a dose of sanity into the case and rejected Finisar’s request for an injunction, allowing DirectTV to continue to use the “technology” upon payment of judicially-determined royalties. Still, a better solution would have been for the Patent Office to reject this obvious patent in the first place.

You can see previous installments in the Software Patent of the Week series here.